..

NO. 89543-1

IN THE SUI REME COURT OF THE STATE OF WASHINGTON

:y:· MARGARET L. BRISCOE,

Petitioner,

vs.

RANDALL LAMONICUS McWILLIAMS,

Respondent,

and

LEVITICUS JADE McWILLIAM~, ELIZABETH ANN ROWLAND, and VICTC R GREER,

Defendants.

APPEAL FROM KING COUNTY SUPERIOR COURT Honorable Sus n Craighead, Judge

ANSWER TO PE'lriTION FOR REVIEW

Address:

Financial Center 1215 Fourth Avenue, Suite 1700 Seattle, WA 98161 (206) 292-4900

067824.099409\43344J.doc

~EED McCLURE ~y Pamela A. Okano

Attorneys for Respondent WSBA #7718

Page

I. NATURE OF THE C SE ............................................................. l

II. ISSUES PRESENTED .................................................................. !

III. STATEMENT OF TH CASE .................................................... 2

A. STATE ME NT OF ELEV ANT FACTS ..................................... 2

B. STATEMENT OF ROCEDURE .............................................. 4

IV. ARGUMENT ................................................................................. .

A. A SHORT P IMER ON WASHINGTON DOG

LIABILITY LAw .................................................................. 5

B. THE PANEL'S ECISION DOES NOT CONFLICT

WITH THIS Cou T's DECISIONS •••••••••••••••••••••••••.•••••••••••••.• 6

1. The Decision Follows This ecisions ................................................... 6

2. Even if Agency, Premises Liability, or Negligent Entrustment Rules Were Otherwi e Applicable, No Evidence Support Them Here ........................................... 12

C. THE PANEL'S ECISION DOES NOT CONFLICT

WITH DECISION OF THE COURT OF APPEALS ••••••••••••••••• 15

D. THE PANEL'S ECISION DOES NOT PRESENT AN

ISSUE OF SUBS ANTIAL PUBLIC INTEREST THIS

COURT SHOULD REVIE\\'' .................................................. 17

V. CONCLUSION ............................................................................ 18

TABLE F AUTHORITIES

Wa hington Cases

Page

Beeler v. Hickman, 50 Wn. Ap . 746,750 P.2d 1282 (1988) ................. 5, 6

Clemmons v. Fidler, 58 Wn. A p. 32, 791 P.2d 257, rev. denied, 115 Wn.2d 1019 (1990) .......................................................... 8, 9, 18, 19

Deep Water Brewing, LLC v. ~ irway Resources Ltd., 152 Wn. App. 229,215 P.3d 990 (2009), rev. denied, 168 Wn.2d 1024 (2010) ................................................................................ 13

Frobig v. Gordon, 124 Wn.2d 32, 881 P.2d 226 (1994) ........................................................................ 5,6,8,9, 10, 18,19

Gorman v. Pierce County, 176 n. App. 63, 307 P.3d 795 (2013) .......................................................................................... 1, 15, 16

Hickle v. Whitney Farms, Inc., 48 Wn.2d 911, 64 P.3d 1244 (2003) .................................................................................................... 15

Iwai v. State, 129 Wn.2d 84, 915 P.2d 1089 (1996) .................................. 12

Larner v. Torgerson, 93 Wn.2d 801, 613 P .2d 780 ( 1980) ....................... 13

Livingston v. City of Everett, 5 Wn. App. 655, 751 P.2d 1199, rev. denied, 110 Wn.2d 1028 (1988) ........................................... 1, 15,16

Markwood v. McBroom, 110 ash. 208, 188 P. 521 ( 1920) .. 6, 7, 8, 10, 18

Rogers v. Irving, 85 Wn. App. 55,933 P.2d 1060 (1997) ....................... 13

Sligar v. Odell, 156 Wash. App 720, 233 P.3d 914 (2010), rev. denied, 170 Wn.2d 1019 (20 11) ....................................................... 6

Thompson v. Everett Clinic, 71 Wn. App. 548, 860 P.2d 1054 (1993), rev. denied, 123 Wn. d 1027 (1994) ........................................ 13

11

Oth r Jurisdictions

Beard v. Fender, 179 Ga. App. 65, 346 S.E.2d 901 (1986) .................... 1 0

Burrell v. Meads, 569 N .E.2d 6 7 (Ind. 1991) .......................................... 10

Croley v. Moon Enterprises, In ., 118 Ohio Misc. 2d 151, 770 N.E.2d 148 (2001) ......................................................................... 13

Decker v. Gammon, 44 Me. 32 (1857) ...................................................... 8

Dickson v. Graham-Jones Pape Co., 84 So. 2d 309 (Fla. 1955) ............. 13

Garrett v. Overland Garage & arts, Inc., 882 S.W.2d 188 (Mo. App. 1994) ................................................................................... 11

Hackett v. Dayton Hudson Cor ., 191 Ga. App. 442, 382 S.E.2d 180 (1989) .......................................................................... 13

Hammond v. Allegretti, 262 In . 82, 311 N .E.2d 821 ( 197 4) ................... 1 0

Landings Ass 'n, Inc. v. William , 309 Ga. App. 321, 711 S.E.2d 294 (2011 ), rev' on other grounds, 728 S.E.2d 577 (2012) .............................................................................................. 10, 11

Langan v. Valerie Wilson Trav l, Inc., No. 9:06-cv-03511-CWH (D.S.C. July 21, 2008) (2008 U.S. Dist. LEXIS 55323) ....................... 11

McClain v. Lewiston Interstate air & Racing Ass 'n, 17 Idaho 63, 104 P. 1015 (1909) .................................................................................. 8

Savory v. Hensick, 143 S.W.3d 712 (Mo. App. 2004) .............................. 11

Schrum v. Moskaluk, 655 N.E. d 561 (Ind. App. 1995) ........................... 11

Statutes

RCW 4.96.010 ........................................................................................... 16

RCW 16.08.040( 1) ...................................................................................... 5

lll

Rules and Regulations

CR 54(b) ..................................................................................................... 4

RAP 13.4(b) .......................................................................................... 5, 10

RAP 13.4(b)(1) ....................................................................................... 5, 6

RAP 13.4(b)(2) ..................................................................................... 5, 16

RAP 13.4(b)(4) ..................................................................................... 5, 17

htt ://abcnews. o.com/Busines /surve -shows-renters-insurance/star ?id=1868561 ................................................................ 18

4 AM. JUR. 2D Animals § 73 .................................................................. 6, 12

RESTATEMENT (SECOND) OF To TS § 343 (1965) ...................................... 14

RESTATEMENT (SECOND) OF To TS § 343(a) (1965) .................................. 14

RESTATEMENT (SECOND) OF To TS §§ 509, 518 (1977) ..................... 12, 14

067824 099409/433671

lV

I. NA URE OF THE CASE.

Randy hired Levi to lean Randy's apartment, as Randy was

moving out. Levi assured Rand he would be done the evening of July 16.

Unbeknownst to Randy, who w s out of town, Levi brought his dog to the

apartment and both were still t ere on July 17. While on an errand, Levi

left the dog loose in the apart ent. Unbeknownst to Randy or Levi, the

landlord asked plaintiff/petiti ner to check the apartment. When she

arrived, Levi's dog attacked her

Plaintiff seeks to hold Randy liable, even though she does not

claim he owned, harbored, or k pt the dog, and even though Randy did not

know it was at his apartment. In an unpublished decision, the Court of

Appeals affirmed summary jud ment for Randy.

II. IS UES PRESENTED.

Does the panel's unpubl" shed opinion-

A. Conflict with a ong line of decisions from this Court and

the Court of Appeals, which ollow the common law rule that only an

animal's owner, keeper, or h borer can be liable for personal injury

inflicted by that animal?

B. Conflict with G rman v. Pierce County, 176 Wn. App. 63,

307 P.3d 795 (2013), or Livin stan v. City of Everett, 50 Wn. App. 655,

751 P.2d 1199, rev. denied, 11 Wn.2d 1028 (1988), where both decisions

were based on statute or muni ipal ordinance and the failure to enforce

exception to the public duty do trine, neither of which is involved in this

case?

C. Present an issue f substantial public importance this Court

should decide where there is n showing that the current established rule

contributes to dog bites or sub tantially precludes recovery from the dog

owner, keeper, or harborer?

III. MENT OF THE CASE.

A. STATEMENT OF RELEV

Defendant/respondent andy Me Williams, rented an apartment in

Seattle from his friend, Victor reer. At some point, Greer decided to sell

the apartment. Randy decided t move out. (CP 69, 84-85)

To prepare for the m ve, Randy moved out his furniture and

cleaned the upstairs and the g age. However, to help out his unemployed

younger brother, Levi McWill ams, Randy agreed to pay Levi $300 to

clean the rest of the apartme t and move Randy's remaining personal

items to their mother's house. ( P 71-74, 92)

On July 14 Randy w nt to California. On July 16, while in

Sacramento, Randy called Le i to find out how he was progressing on

cleaning the apartment. Levi ssured his brother that he would be done

with the cleanup by that evenin , i.e., the evening of July 16. Accordingly,

2

Randy agreed to transfer the $ 00 into Randy's girlfriend's bank account.

In addition, in reliance on Levi's representation, Randy told the landlord

on July 16 that the apartment ould be done by that evening. (CP 74-75,

85-86, 96-97)

Levi and pit bull named Jersey.

Unbeknownst to Randy, Levi ot only brought Jersey with him to clean

Randy's apartment, Levi did no finish cleaning by the evening of July 16

as he had promised. Unbekn wnst to Randy, Levi and Jersey stayed

overnight at the apartment and ere still there on July 17. (CP 76, 77, 96,

99, 101, 114; Appellant's Amen ed Opening Brief 7, 21)

Although the apartment was for sale and had a realtor's lockbox,

Randy understood that the real state agent would call him before showing

it. Randy had not received su h a call. Moreover, unbeknownst to both

Randy and Levi, the landlord sked plaintiff/petitioner Margaret Briscoe

to go to the apartment to see if andy had moved out. (CP 77, 86, 95)

On July 17, the day a er Levi had assured Randy he would be

done, plaintiff arrived at the a artment. Levi had gone out on an errand.

When plaintiff opened the door Levi's dog attacked, injuring her legs. (CP

82,84,86,96-97, 113)

3

Contrary to plaintiffs c aim (Petition 5) that when he heard of the

attack, "Randall immediately ew the dog must have been Jersey," the

evidence shows that what Rand really said was this (CP 97-98):

A. ... And he [the andlord] told me, Hey, man, Mom got bit by a dog.

Oh, wow. Reali ? And I'm like, is she going to be okay? He's like, Dude, ot bit at your house. And I'm like, What? And he tells me Yeah, she went over there in the morning and, you kno , opened up the door, and dog bit her.

Q. Did he say whic dog?

A. He said - he ha got - he had talked to her, and it was a light tan dog. An then first thing that went through my head was like, 0 , who could that be? And I'm thinking, Don't tell me 't is Jersey. And he's like, Yeah, I think it was Jersey.

(Emphasis added.)

B. STATE ME NT OF PROCE

Plaintiff sued the landl rd, Levi, his girlfriend, and Randy. The

claims against Randy were for negligence and agency liability. 1 (CP 1-5)

The trial court granted Randy s mmary judgment. (CP 44-80, 167-69)

Plaintiff then obtaine a default order against Levi and his

girlfriend and voluntarily dis issed the landlord. CR 54(b) findings,

1 Plaintiff also claimed breach of the lease and that she was a third-party beneficiary of the lease. The trial court dismissed t ese claims, which have been abandoned on appeal. (CP 4, 43; Appellant's Amended Ope ing Brief9)

4

declaring there was no just rea on for delay and entry of final judgment

were entered. (CP 170-78)

IV. ARGUMENT.

This Court will not gra t every petition. Instead, it accepts review

only if one or more of the cri eria set forth in RAP 13 .4(b) is present.

Petitioner claims this case me ts three criteria-RAP 13.4(b)(1)-(2) and

(4). Petitioner is wrong. There i no reason for this Court to review.

A. A SHORT PRIMER ON ASHINGTON DOG LIABILITY LAW.

A short primer on Was ington dog liability law will be helpful in

understanding why this case is ot appropriate for review. In Washington

liability for a dog attack can be ither statutory or under common law. The

relevant statute, RCW 16.08.04 (1 ), provides:

The owner of any dog which shall bite any person while such person is in or on public place or lawfully in or on a private place including the property of the owner of such dog, shall be liable for s ch damages as may be suffered by the person bitten, rega less of the former viciousness of such dog or the owner's nowledge of such viciousness.

(Emphasis added.) By its te s, the statute makes the owner of a dog

strictly liable, without regard knowledge. Beeler v. Hickman, 50 Wn.

App. 746,751-52,750 P.2d 12 2 (1988).

Under the common la , liability flows from ownership or direct

control of the animal. Frobig . Gordon, 124 Wn.2d 732, 735, 881 P.2d

226 (1994). A person cannot e liable for an injury resulting from a dog

5

•

bite unless he or she is the wner, keeper, or harborer of the dog.

Markwood v. McBroom, 110 ash. 208, 211, 188 P. 521 (1920); see

generally 4 AM. JuR. 2D Animal

A dog owner, keeper, o harborer may be strictly liable only if he

or she knows of the animal's v cious propensities. Frobig, 124 Wn.2d at

735 n.1. Absent such knowledg , the dog owner, keeper, or harborer may

be liable in negligence, but onl if he or she failed to reasonably prevent

harm. !d. In short, Washington ourts have consistently refused to deviate

from the rule that liability resu ting from the ownership and management

of an animal rests exclusively ith the owner, harborer, or keeper. 2

B. THE PANEL'S DECISI N DOES NOT CONFLICT WITH THIS

COURT'S DECISIONS.

1. The Panel's De ision Follows This Court's Decisions.

Although plaintiff cites P 13 .4(b )( 1) as a basis for her petition,

she does not claim the panel's ecision conflicts with this Court's animal

cases she cites, Markwood v. McBroom, 110 Wash. 208, 188 P. 521

(1920), and Frobig v. Gordon, 124 Wn.2d 732, 881 P.2d 226 (1994). For

that reason alone, review under RAP 13 .4(b )(1) is not proper.

2 See, e.g., Sligar v. Odell, 156 Was . App. 720, 233 P.3d 914 (2010), rev. denied, 170 Wn.2d 1019 (2011); Beelerv. Hickm n, 50 Wn. App. 746,750 P.2d 1282 (1988).

6

Plaintiff instead clai s the panel here "misapplied" those

decisions. As will be discussed, what plaintiff is really arguing is that this

Court did not mean what it said n those cases.

In Markwood plaintiffs ught to hold a lessee's receiver liable for a

fatal dog bite. The receiver had taken possession of the leased land before

the attack. Unbeknownst to the receiver, a third person was keeping dogs

on the land, and one of the eceiver' s employees was feeding them.

This Court reversed a verdict for plaintiff and remanded for

judgment in favor of the recei er, the possessor of the land. In so doing,

this Court, relying on common aw3, held (110 Wash. at 211):

We are quite unable t see any theory upon which the verdict and judgment in this case can be sustained without facts, or justi able inference from facts, which would show that the re eiver was the harborer, keeper, or had control of the dog . This question being at the very threshold of the appea , and being decisive thereof, it is not necessary to discus or determine any other question presented in the briefs.

!d. at 213 (emphasis added). P aintiff s claims that none of the decisions

cited by the panel stands forth proposition that only an owner, harborer,

or keeper can be liable and t at Markwood does not hold that only the

3 The Markwood court also held that e statute then in effect and a city ordinance did not apply because they too were limited to the owner, keeper, and harborer. 110 Wash. at 212. Contrary to what plaintiff claim at page 10 of her petition, this Court decided the case under the common law as well a under the statute and ordinance.ld. at 211-12.

7

owner, keeper, or harborer of a dog can be liable are baseless. (Petition 7,

10, 12)

Here, plaintiff claims at Randy, the absent possessor of land

where the dog attack occurred, should be liable, even though he was not

the dog's owner, keeper, o harborer. Far from conflicting with

Markwood, the panel's decisi n that Randy cannot be liable follows

Markwood.

Markwood did cite Me lain v. Lewiston Interstate Fair & Racing

Ass'n, 17 Idaho 63, 104 P. 1015 (1909), and Decker v. Gammon, 44 Me.

322 (1857), but solely for the p oposition that under the common law, only

the owner, harborer, or keeper of a dog can be liable for a dog bite. 110

Wash. at 211. Those cases are therwise inapposite.4

As will be discussed, Frobig cited with approval Division II's

decision in Clemmons v. Fidl r, 58 Wn. App. 32, 791 P.2d 257, rev.

denied, 115 Wn.2d 1019 ( 199 ). Clemmons rejected a plaintiffs attempt

to use common law landlord-te ant principles to hold a landlord liable for

an attack by a tenant-owned dog. Noting that the common law and

statutory law are consistent, id. at 35-37, the court declared:

4 Plaintiff's claim that McClain is s milar to the instant case borders on the frivolous. Unlike the fair association, Randy McWilliams did not know the dog was on his premises. Unlike the fair association, hich knew there would be horses on its race track, there is no evidence Randy knew the andlord had sent plaintiff to his apartment. (CP 76)

8

We hold that the comm n law rule applies: only the owner, keeper, or harborer of the dog is liable for such harm. This rule is consistent ith our case law, with our former criminal and present civ 1 statutes on dogs ....

[L ]iability flows from o ership or direct control, and the owner of a danger do is the person who must insure himself against such lia ility.

!d. at 34-35, 37 (emphasis adde ).

Although Frobig invol ed a tiger, the same rules applicable to a

vicious dog are applicable to ild animals in Washington. 124 Wn.2d at

737. In Frobig, plaintiff sough to hold the landlords of the tiger owner

liable. The Court of Appeals h d ruled plaintiff was entitled to go to trial

on common law landlord-tenan principles. In an unanimous opinion, this

Court reversed and affirmed s mmary judgment for the landlords. Citing

Clemmons with approval, Frob explained:

The rule in Washingt n is that the owner, keeper, or harborer of a dangero s or vicious animal is liable; the landlord of the owner, eeper, or harborer is not. In short, liability flows from ow ership or direct control.

The wild animals wer [their owner's] alone, and under Washington law liabilit resulting from the ownership and management of those animals rests with [their owner] alone.

124 Wn.2d at 735, 737 (citin Clemmons, 58 Wn. App. at 35-36, 37)

(citations omitted; emphasis ad ed). In other words, Frobig reaffirmed the

common law rule that only th se with control of the animal-the owner,

harborer, or keeper-can be lia le.

9

Thus, in holding Rand not liable as a matter of law, the panel

assumed this Court meant what it said in Frobig and Markwood: only the

owner, keeper, or harborer oft e animal in question can be liable. Randy

McWilliams was not the owner keeper, or harborer of Levi McWilliams'

dog. There is no conflict betwe n the panel's decision and any decision by

this Court.

Plaintiff attempts to dist nguish these cases as involving whether a

landlord, not a tenant, can be liable for a dog he or she did not own,

harbor, or keep. But Markwoo involved an attempt to impose liability on

a tenant's receiver, not the andlord. And although the Frobig and

Clemmons defendants were la dlords, the holdings in both cases were

unequivocal: because liability ows from ownership or direct control of

the animal, only the owner, har orer, or keeper of the animal can be liable.

Plaintiff's reliance on ases from other jurisdictions at page 13,

n.2, of her petition cannot su port review. RAP 13.4(b). In any event,

plaintiff's cases do not suppo her position. Some did not even involve

animals or if they did, the an·mals had no owner, keeper, or harborer.s

Some involved defendants who were the owners of the dog. 6

5 See Burrell v. Meads, 569 N.E.2d 37 (Ind. 1991) (fall from map balanced on rafter); Hammondv. Allegretti, 262 Ind. 82, 11 N.E.2d 821 (1974) (slip and fall in icy parking lot); Beard v. Fender, 179 Ga. App. 465, 346 S.E.2d 901 (1986) (fall off ladder while trying to eradicate wasps' nest); Lan ings Ass'n, Inc. v. Williams, 309 Ga. App. 321,711

10

Langan v. Valerie Wils n Travel, Inc., No. 9:06-cv-03511-CWH

(D.S.C. July 21, 2008) (2008 .S. Dist. LEXIS 55323), an unpublished

decision, involved a completely different fact pattern than the instant case.

There the employee/dog owner had a written contract with her employer

allowing her to keep her dog in her private office. Despite this agreement,

the dog was left to roam. rior to the attack in question, senior

management had been told the og was not being kept in its owner's office

as required by the contract an was causing problems with clients and

employees. Indeed, before the attack, the dog had behaved aggressively

towards various persons at least 10 times.

Schrum v. Moskaluk, 55 N.E.2d 561 (Ind. App. 1995), also

involved a different fact patte . Unlike here, the defendant landowners

were holding open their prop rty to the public for a garage sale. 7 In

addition, the opinion, which as not been cited by any other dog bite

decision, fails to cite a single f: ct suggesting that defendant landowner-

who had no actual knowlede f the dog's presence-reasonably should

S.E.2d 294 (2011) (resident killed by wild alligator), rev'd on other grounds, 728 S.E.2d 577 (2012).

6 See Garrett v. Overland Garage Parts, Inc., 882 S.W.2d 188 (Mo. App. 1994); Savory v. Hensick, 143 S.W.3d 712 ( o. App. 2004).

7 Although the landlord in the instant case was trying to sell the premises, the real estate agent was supposed to contact Rand McWilliams if and when the property was to be shown. The real estate agent did not ontact Randy before the incident at issue here. (CP 77)

11

have known it was there. Abse t such a fact, Schrum would be contrary to

Washington premises liability law, which requires plaintiffs to show a

landowner's "actual or constru tive notice of the unsafe condition." lwai

v. State, 129 Wn.2d 84, 96,915 P.2d 1089 (1996).

2. Even if Agen y, Premises Liability, or Negligent Entrustment ules Were Otherwise Applicable, No Evidence Supp rts Them Here.

Plaintiff claims this Co should abandon the well-established rule

that only the owner, harborer, r keeper of the dog can be liable, in favor

of common law agency, premi s liability, and negligent entrustment law.

Plaintiff implies that comm n law agency, premises liability, and

negligent entrustment principle somehow trump equally well-established

common law animal law pri ciples and that she has somehow been

deprived of a remedy that eviously existed. But plaintiff cites no

authority for this argument, b cause there is none. See generally 4 AM.

JUR. 2D Animals § 73; RESTA EMENT (SECOND) OF TORTS §§ 509, 518

(1977).

In any event, even plaintiffs theories could otherwise be

applicable in dog bite cases, th y cannot help her here, because there is no

evidence to support them.

First, plaintiff presente no facts that Levi was Randy's agent, as

opposed to an independent co tractor. One who retains an independent

12

contractor is generally not liabl for the contractor's negligence. Rogers v.

Irving, 85 Wn. App. 455, 464, 933 P.2d 1060 (1997). Plaintiff failed to

produce a shred of evidence t at Randy maintained the right of control

over Levi's work, a critical fa tor in establishing agency. See Larner v.

Torgerson, 93 Wn.2d 801,804- 5, 613 P.2d 780 (1980).

Second, even if Levi ha been Randy's agent, he was so only with

respect to cleaning the house. andy did not authorize the dog to be there

and did not know it was there. ( P 76) A tort committed by an agent while

in the principal's employment is not chargeable to the principal when it

emanates from a wholly perso al motive and was done solely to gratify

the agent's objectives or desire . Thompson v. Everett Clinic, 71 Wn. App.

548, 553, 860 P.2d 1054 (1993, rev. denied, 123 Wn.2d 1027 (1994); see

also Deep Water Brewing, LL v. Fairway Resources Ltd., 152 Wn. App.

229, 269, 215 P.3d 990 (2009, rev. denied, 168 Wn.2d 1024 (2010). In

fact, courts elsewhere have rul d an employer is not liable for a dog bite

where, as here, the employe brings the dog to work for his own

convenience. Dickson v. Grah m-Jones Paper Co., 84 So. 2d 309 (Fla.

1955); Hackett v. Dayton Hu on Corp., 191 Ga. App. 442, 382 S.E.2d

180 ( 1989); Croley v. Moon En erprises, Inc., 118 Ohio Misc. 2d 151, 770

N.E.2d 148 (2001).

13

Plaintiffs premises liab lity theory also has no evidence to support

it. Washington follows RESTA EMENT (SECOND) OF TORTS § 343 in non-

animal premises liability cases. Section 343(a) provides:

A possessor of land is bject to liability for physical harm caused to his invitees b a condition on the land if, but only if, he

(a) knows o by the exercise of reasonable care would discover the co dition, and should realize that it involves an unreasonabl risk of harm to such invitees, and

(Emphasis added.)

Plaintiff was not Rand 's invitee, as the first sentence of section

343 requires. But even if she h d been, and even, assuming arguendo, that

an animal can be a "conditio on the land,"8 there is no evidence that

fulfills section 343(a). Rand did not know, nor by the exercise of

1) Levi would bring th dog to the apartment he was supposed to

clean; or

2) the dog was at the a artment the day after Levi assured him he

would be finished; or

8 The RESTATEMENT (SECOND) OFT RTS contains separate sections for animals, making an animal's possessor or harborer li ble for harm inflicted by the animal under certain circumstances. See RESTATEMENT (S COND) OF TORTS §§ 509, 518.

14

3) someone with a key ould be coming to the apartment without

giving him prior notification, or

4) Levi would leave the dog alone and loose in the apartment.

Plaintiffs failure to produce an evidence as to any one of these is fatal to

her premises liability claim.

Finally, for the same re sons, there is no evidence to support the

negligent entrustment theory. E en if negligent entrustment could apply to

allowing a cleaning person to nter premises, negligent entrustment "is

based on the foreseeability of h rm when one knew or should have known

that the person to whom mate ials were entrusted was unable to safely

handle the materials." Hickle v. itney Farms, Inc., 148 Wn.2d 911, 925,

64 P.3d 1244 (2003). Here, as etailed in the previous paragraph, there is

no evidence that harm was reas nably foreseeable by a reasonable person

in Randy's shoes. This unfo eseeability defeats plaintiffs negligent

entrustment claim.

C. THE PANEL'S DECISIO DOES NOT CONFLICT WITH DECISIONS

OF THE COURT OF APPE LS.

Contrary to plaintiffs cl im, the panel's decision does not conflict

with either Gorman v. Pierce ounty, 176 Wn. App. 63, 307 P.3d 795

(2013), or Livingston v. City of verett, 50 Wn. App. 655, 751 P.2d 1199,

rev. denied, 110 Wn.2d 1028 (1 88). In those cases, the defendant was the

15

city or county, which allegedly failed to fulfill its statutory or ordinance­

created duty to control vicious dogs. Although governmental entities are

liable for torts to the same e tent as if they were a private person or

corporation, RCW 4.96.01 0, a laintiff must still overcome the public duty

doctrine, which requires that t e duty breached be owed to the injured

person as an individual, not me ely to the public in general. Livingston, 50

Wn. App. at 658; see Gorman, 76 Wn. App. at 75.

An exception to the pu lie duty doctrine is the failure to enforce

exception. Under that excepti n, a plaintiff within the class a statute is

intended to protect can sue th government where its agents responsible

for enforcing that statute actu lly know of its violation, yet fail to take

corrective action despite a stat ory duty to do so. Gorman, 176 Wn. App.

at 77; Livingston, 50 Wn. App at 658. It was this exception that created

liability in both Gorman and Li ingston.

Defendant Randy Me illiams is not a governmental entity. No

statute provides a basis for i posing liability upon him. Randy did not

actually know Levi's dog was ven in his apartment, let alone that it was

there a day after he expected evi to have finished cleaning. The panel's

decision here does not conflic with Gorman or Livingston or any other

Court of Appeals decision, as r quired by RAP 13.4(b)(2). Review should

be denied.

16

D. THE PANEL'S DECISI N DOES NOT PRESENT AN ISSUE OF

SUBSTANTIAL PUBLIC I TEREST THIS COURT SHOULD REVIEW.

In an effort to prove t e substantial public interest required by

RAP 13.4(b)(4), plaintiff prese ts nearly 6-year-old nationwide statistics.

None of these statistics breaks out the state of Washington and, in fact,

one of plaintiffs sources expl ins that dog bite-related emergency room

visits and hospitalizations are s gnifcantly lower in the west than in other

parts of the country. L. H lmquist & A. Elixhauser, Emergency

Department Visits & Inpatient tays Involving Dog Bites (2008), pp. 1, 13-

14,

bites.pdf. concede their cost estimates may be

overstated because "the cost er stay and encounter may involve costs

associated with other diagnose and procedures." !d. at 2 n.5. They also

admit that while the rate of do bite-related hospitalizations has increased

between 1993 and 2008, the pe k was in 1995. !d. at 1-2.

Perhaps more important y, plaintiff has also failed to show that the

current Washington rule limiti g liability to owners, keepers, or harborers

either contributes to the incid nee of dog bites or causes a substantial

portion of those bitten to go u compensated. Indeed, plaintiffs statement

that "those in physical possesi n of premises" "are in the best position to

prevent injury from dangerou animals" is simply untrue. (Petition 18)

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The person in the best position o prevent injury from a dangerous animal

is the owner, keeper, or harbor r of that animal. See Clemmons, 58 Wn.

App. at 38.

Plaintiff's assumption that "those in physical possession of

premises" are "in the best positi n, through their homeowner's or tenant's

insurance, to bear the cost" is lso not true, if they are not the owners,

harborers, or keepers of the og.. First, plaintiff is trying to impose

liability on a tenant. Only 34 ercent of American tenants have rental

insurance. s. o.com/Business/surve -shows-renters-

insurance/story?id=18685618. econd, there is no showing that a dog

owner, keeper, or harborer is any less likely to have some form of

applicable insurance than those · physical possession of premises.

v.

This Court it said, "The rule in

Washington is that the owner, keeper, or harborer of a dangerous or

vicious animal is liable .... " Fr big, 124 Wn.2d at 735 (emphasis added);

accord, Markwood, 11 0 Wash. at 211. Plaintiff has not cited a single

Washington case that is contrar to the panel's unpublished decision here.

Nor has she demonstrated that this case presents an issue of substantial

public importance that this Cou should review.

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Moreover, even if p aintiffs theories of recovery-agency,

premises liability, and neglige t entrustment-were otherwise applicable

to dog bite cases, they woul not apply here since plaintiff failed to

produce any evidence that woul support those theories.

Division II was correct hen it said:

[W]e see no reason to depart from our settled rule [that only the owner, keeper, r harborer of a dog can be liable.] ... Our rule also pro tes the salutary policy of placing responsibility where it belongs, rather than fostering a search for a defendant hose affluence is more apparent than his culpability.

Clemmons, 58 Wn. App. at 38, cited with approval in Frobig, 124 Wn.2d

at 735.

Under these circumsta ces, there is no reason for this Court to

review. The petition should be

DATED this &, da

ED McCLURE

Pamela A. Okano WSBA #7718 Attorneys for Respondents

067824 099409/430958

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